Military Law And The Case Of Sgt. Bowe Bergdahl

How does military law handle a deserter or a defector? And how will the U.S. military deal with the controversial case of Sgt. Bowe Bergdahl? Military law expert Eugene Fidell discusses these questions with Here & Now’s Robin Young.

Guest

Eugene Fidell, teaches military justice at Yale University. He’s also co-founder and former president of National Institute of Military Justice.

Today, the Pentagon said that Army Seargeant Bowe Bergdahl's health is improving, although there's no date set for his first phone call to his family in Idaho or his transfer from the U.S. military hospital in Landstuhl, Germany to an Army hospital in Texas. But what happens after that? Some of Bergdahl's former fellow unit members are calling for his court-martial. What exactly does that mean? When is a court-martial called for? A 2010 report reportedly concluded that Bergdahl walked off his base before disappearing. Today, The New York Times is reporting that that still unclassified, or classified rather, military report says Bergdahl may have walked away from his unit at least two other times. But what is that called? Is that desertion? Going AWOL? Eugene Fidell teaches military justice at the Yale Law School. We've asked him for a primer through the prism of the Bergdahl case, with the caution that we don't know anything yet really about what happened. So, Eugene, start with have prisoners of war faced court-martial?

EUGENE FIDELL: Yes, there have been POWs who have been taken to trial. It's very unusual. But if you have a POW who helps the captor mistreat other POWs, that person is going to get prosecuted if we get our hands on him or her.

YOUNG: In the meantime, a lot of words are being thrown around - deserter, defector.

FIDELL: There's no indication that Sergeant Bergdahl left with a view to joining the Taliban. That's defection. >>YOUNG: Defector. Yeah.

FIDELL: Correct.

YOUNG: Well, we are hearing soldiers say that there are all sorts of rumors flying around, that he was actually connected to the Taliban - it's just wild, wild rumor now. But if anything like that were to be proven, then that would make him a defector?

FIDELL: Well, I suppose. The offense is becoming part of the enemy camp - crossing lines and basically aiding the enemy.

YOUNG: So what's a deserter as opposed to a defector?

FIDELL: A deserter is simply a member of the armed forces who leaves his or her duty station, classically, with a view to remaining away permanently. That's the difference between a deserter and somebody who simply goes AWOL. A person who is AWOL is simply a person who's not at his or her duty station at the appointed time. So that a person, for example, who shows up 15 minutes late for morning inspection formation is technically AWOL for this 15 minutes. That's a far cry from the person who go over the fence having left a note on his or her rack saying, Searg, I'm leaving and you're never going to see me again. That a deserter.

YOUNG: And how does someone go from speculation about why they left a base to a court-martial? What's that process?

FIDELL: Well, there has to be an investigation that's conducted. And the Army has already years ago conducted what's called an Army regulation or AR 15-6 investigation. That's simply administrative inquiry, typically conducted by one officer, to just develop a factual record - the basic facts.

YOUNG: Is this the 2010 report we hear about?

FIDELL: Yes, I believe that's the case. And that can be supplemented. Maybe it's a little stale by now, maybe more people are willing to speak. It's possible, by the way, that back in 2010, there were some members of the unit who were, let's say economical with information because they thought that something that they may have done might have put their own conduct under the microscope. So who knows? We don't really know.

In any event, at a certain point, some military person will initiate a report of offences. That would then go to a commander with an investigative file. The commander then has to decide, does the information available indicate that there may be a basis for disciplinary action under the uniform code of Military Justice of a fairly serious nature? If so, the commander then can refer the matter to what's called an article 32 investigation. An article 32 investigation is simply to determine whether there's probable cause to believe that an offense has been committed and to make recommendations, really, as to how that offense should be dealt with, either disregarded because it's minor or the circumstances don't lend themselves to trial for one reason, or handle it at a very low level of disciplinary action called non-judicial punishment, which is not a court-martial. Or refer it to one of the three levels of court-martial. The highest level of court-martial is a general court-martial and the person under current law who is the power to decide whether any set of charges should be referred to a court-martial, is a commander, not a lawyer. The commander, called the convening authority, will have legal advice from his or her staff judge advocate, but under our current system, which, forgive me, we inherited from George III, that power is held by commanders who are not lawyers.

YOUNG: Are there any subjective factors that are brought in? In this case, for instance, we're hearing reports about how this outpost was just hell on Earth - undermanned, undisciplined. Will those kinds of considerations be taken in if in fact it was just a guy who lost it and walked off his outpost?

FIDELL: Those kinds of considerations do not strike me as particularly pertinent to whether the military justice process should be brought into play. For example, you could have a unit that's kind of a mess. That doesn't mean that a person gets a free ride when he or she has committed an offense. It goes to whether certain other actions should be taken, for example, hammering those people in the chain of command that permitted a unit to become a mess. You could certainly take into account the fact that a unit was operating in a strange and forbidding environment - in Afghanistan, all of it certainly fits in that description. You could take into account - I guess this is done - the unavailability of witnesses. You could basically abort the entire process by saying, look, we're not going to be able to get witnesses. I don't see that happening here.

Now that said, once the decision is made to send the case to an article 32 investigation, then the article 32 investigating officer can bring in, within reason, those factors that he or she thinks might be of interest to a convening authority who has the power to make a decision what to do with the charges. For example. if it turned out that the individual - and here I'm obviously thinking of Sergeant Bergdahl - was subjected to brutal treatment during the course of his AWOL, that might be a factor that you would take into account. Suppose he was, you know, a total mess physically. Suppose he was a total mess emotionally - a person who under no circumstances would be a candidate for, you know, serious criminal punishment. Well, sure you would take that into account. Some of the other things you mentioned, though, strike me as not moving the needle at all.

YOUNG: Eugene Fidell, he teaches military justice at the Yale Law School in New Haven. Eugene, always great to speak with you. Thank you.